Justice Goodson is a Danger to the Constitution

You may have read ads questioning Justice Courtney Goodson’s ethics. Or you may have read news stories (or blog posts) about the ads that question Justice Goodson’s ethics. These ads raise some troubling questions for voters to consider. What is even more troubling in my opinion, however, is Justice Goodson’s indifference to the First Amendment.

I say that not because of any issues raised in ads against her, but because of how she has reacted to those ads. She and her surrogates have resorted to using the courts to try to shut down the speech of the groups which have sponsored these ads. First, a small group of political activists who label themselves the “Rapid Response Team” (RRT) sent what they call a “cease-and-desist” letter demanding that the sponsor, the Republican State Leadership Committee (RSLC), shut down these ads. Then, when the RSLC ignored that letter (as it should have), Justice Goodson filed a defamation suit against the sponsor.

The basis for her suit is that her allies in the RRT have declared these ads to be “false,” so if the RSLC continues to run them, this group is spreading these false accusations with “actual malice.” That would meet the high bar that the Supreme Court has set for public officials (like politicians) to win defamation suits.

Justice Goodson has a big problem, however – the RSLC ads are opinion pieces that, as the RSLC has explained, have facts to back them up. Justice Goodson may not like how the RSLC has interpreted the facts about her donors and the facts about the pay raise the Supreme Court asked for and that she accepted, but that does not mean they are false. Merely because an advocacy group has deemed the RSLC ads “false” does not actually make them false. As we have discussed on TAP, the RRT’s analysis of the ads’ content is biased and flawed. The RRT is certainly free to offer its opinion on the RSLC ads, but there is no reason that anyone but a Goodson partisan would take the RRT seriously.

If Justice Goodson or her allies think that these ads are misleading, then they have quite a few different ways to respond. One of them is to educate the public. They have been doing so by going to the media and pointing out the problems with them. They can also release ads of their own. Another option is to rebut the charges made in the ads. For instance, one of the ads says that Justice Goodson requested a pay increase. Justice Goodson could refute that charge with one sentence denying that she ever did so. The fact that she refuses to do so — based on a groundless legal theory that she has a duty of confidentiality not to discuss her own pay raise — does not bolster her allies’ contention that this charge is a lie.

The improper thing to do in response to a political ad is to file a lawsuit. That is an attempt to use the government to censor speech critical of a government official. An action that is more antithetical to the First Amendment is difficult to envision. People can dislike an ad; they can think that the ads’ sponsors are horrible people – but they should not try to get the government to shut down this speech.

Here are some of the more egregious parts of Goodson’s complaint:

  • As explained above, Justice Goodson relies on the RRT’s determination that the ads were “false and misleading” to prove her contention that the RSLC is acting with “actual malice” in running them. However, as the RSLC’s letter to the RRT demonstrates, there is ample evidence to support the claim that Justice Goodson requested a pay raise. Perhaps you disagree with the RSLC’s assertion, but that is a matter of opinion. It is absurd to say that the RSLC made a “defamatory statement” in its ad.
  • The complaint calls the Republican State Leadership Committee a “dark money” organization, defining that term as “money spent either for or against a candidate by entities whose donors cannot readily be determined.” Apparently, Justice Goodson did not take the time to look at the organization’s donor forms filed with the IRS. Here, for instance, is the form in which it lists its donors for the time period of July 1, 2018, and September 30, 2018. How can the complaint say that this entity’s “donors cannot readily be determined” when it took me about 5 minutes to find them? The complaint says that no such information is available for the 2018 election cycle. That is completely false since it filed donor forms in April, July, and September.
  • The complaint alleges that this “dark money” (which, as noted above, is completely disclosed to the IRS) will determine the course of the judicial election unless the courts step in and stop this speech. It says that Goodson won a Supreme Court seat in 2010 when “dark money” was not present, but lost her bid for chief justice in 2016 when “dark money” was present. Obviously, there are many factors that determine how people vote. Campaign ads, whether funded by candidates or independent organizations, are certainly a factor. However, perhaps other things – Justice Goodson’s record, her temperament on the high court, her personal life, etc. – played into the voters’ minds in 2016 differently than they did in 2010. It is absurd to pin Justice Goodson’s electoral outcomes solely on these ads, as this complaint does. It is even more absurd to ask a judge to stop the ads from running, a request for prior restraint of speech that the Supreme Court has roundly rejected.

People who run for public office should be prepared for people to say bad things about them. They should be prepared for people to have opinions about them that the candidate may find insulting. They should also be prepared for people to have inaccurate opinions about them. That is one of the prices of running for office. You don’t get to sue people because of this.

This apparently is news to Justice Goodson. In fact, she has a history of using the courts to silence those who criticize her — indeed, she has a history of using the courts to get judges to do hilariously unconstitutional things, such as impose prior restraint on her critics. Regardless of whether she asked for a pay raise or acted improperly to favor donors to her campaign (the charges made in the RSLC ads), her lawsuit should concern anyone who values free speech. Shouldn’t a judge have a stronger attachment to the First Amendment than Goodson shows here?

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